2017 (10) TMI 1218 - AT - Income Tax

Appeal against draft order maintainability - Held that - We notice that AO passed draft assessment order pertaining to the assessment year under consideration on 19.12.2011. Thereafter the AO passed final order on 24.2.2012. The assessee challenged draft order passed by the AO and the Ld. CIT(A) passed detailed order dated 27.11.2012. Thereafter the Ld. CIT(A) again passed order dated 26.2.2013 holding that appeal against draft order is not maintainable. Since the Ld. CIT(A) has nullified his own order, which is under challenge, these cross appeals have become infructuous. Hence, we allow the application dated 11/08/2017 and dismiss both the appeals being infructuous.

Issues involved:
1. Arm's Length Adjustment on income from loans to subsidiaries
2. Treatment of equity investment in overseas subsidiary as an international transaction
3. Reclassification of share application money as a loan
4. Disallowance of weighted deduction under section 35(2AB) of the Act
5. Disallowance under section 14A of the Act
6. Adjustment towards Guarantee Fee
7. Adjustment of difference on interest for loans to Associate Enterprises
8. Adjustments on interest treated as a loan in respect of transfer of shares
9. Deduction under section 80IC without allocating R&D and Interest Expenses
10. Claim of deduction under section 35(2AB) not allowed due to lack of Form 3CL
11. Disallowance under section 40(a) for non-withholding tax on payments to non-residents
12. Disallowance of Provision for bad and doubtful debts
13. Disallowance of Provision for unrealized Marked-To-Market loss
14. Disallowance of Provision for gratuity
15. Disallowance of expenses disallowable under section 14A

Analysis:
1. The appeals were filed against the order passed by the Commissioner of Income Tax (Appeals) regarding the assessment year 2008-09. The issues raised by the assessee included arm's length adjustment on income from loans to subsidiaries, treatment of equity investment in an overseas subsidiary as an international transaction, reclassification of share application money as a loan, disallowance of weighted deduction under section 35(2AB), and disallowance under section 14A. The department challenged adjustments towards Guarantee Fee and differences on interest for loans to Associate Enterprises.

2. The arm's length adjustment issue involved directions to re-compute additions under section 92C of the Income Tax Act for loans given to Associate Enterprises. The appellant argued that the transactions were at arm's length and no further addition was warranted. The issue of equity investment being treated as an international transaction was also raised, questioning the reclassification of equity infusion into a loan. The appellant sought withdrawal of the direction given to make additions.

3. The reclassification of share application money as a loan was disputed, with the appellant arguing against the reclassification and the calculation of interest. The disallowance of weighted deduction under section 35(2AB) was contested, claiming that the expenses were indeed for in-house research. The disallowance under section 14A was also challenged, seeking deletion or reduction of the disallowance amount.

4. The department challenged adjustments towards Guarantee Fee, arguing about the basis for adjustment and the risk associated with different types of guarantees. The issue of differences on interest for loans to Associate Enterprises involved equating lending and borrowing transactions, currency conversions, and benchmarking against international benchmarks like LIBOR.

5. The judgment ultimately dismissed the appeals as infructuous due to changes in the assessment orders and subsequent nullification of the CIT(A)'s orders. The cross appeals filed by both the assessee and the revenue for the assessment year 2008-09 were dismissed, rendering the issues moot.

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